Thomas v. Astrue

Filing
24

MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 4/5/2012. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEBRA I. THOMAS,
:
Plaintiff,
:
vs.
:
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CA 11-0406-C
:
:
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 1383(c)(3), seeking judicial
review of a final decision of the Commissioner of Social Security denying her claim for
supplemental security income benefits. The parties have consented to the exercise of
jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings
in this Court. (Docs. 18 & 19 (“In accordance with provisions of 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73, the parties in this case consent to have a United States magistrate judge
conduct any and all proceedings in this case, . . . order the entry of a final judgment, and
conduct all post-judgment proceedings.”).) Upon consideration of the administrative
record, plaintiff’s brief, and the Commissioner’s brief,1 it is determined that the
1
The parties waived oral argument in this case. (Doc. 17; see Doc. 20.)
1
Commissioner’s decision denying plaintiff benefits should be reversed and remanded
for further proceedings not inconsistent with this decision.2
Plaintiff alleges disability due to degenerative disc disease, arthritis, and
hypertension. The Administrative Law Judge (ALJ) made the following relevant
findings:
1.
The claimant has not engaged in substantial gainful activity since
September 15, 2009, the application date (20 CFR 416.971 et seq.).
.
.
.
2.
The claimant has the following severe impairments: degenerative
disc disease (DDD), generalized arthritis with gout and hypertension
(20 CFR 416.920(c)).
.
.
.
3.
The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926).
.
.
.
4.
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform less than the
full range of light work as defined in 20 CFR 416.967(b), in function by
function terms (SSRs 83-10 and 06-8p), with certain non-exertional
restrictions associated with that level of exertion. The claimant’s specific
physical capabilities during the period of adjudication have been the
ability to lift/carry up to 20 pounds occasionally and 10 pounds
frequently; and balance occasionally. The claimant could work in a job
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 18 & 19 (“An appeal from a
judgment entered by a magistrate judge shall be taken directly to the United States court of
appeals for this judicial circuit in the same manner as an appeal from any other judgment of this
district court.”))
2
2
that would allow her to change position from sitting to standing
without having to leave her workstation. The claimant could work in a
job that would not require her to climb ladders/scaffolds/ropes; and in
an environment that would not require work at unprotected heights or
around dangerous equipment. The claimant could perform tasks that do
not involve complex or detailed instructions due to her limited
education.
In making this finding, I have considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence, based on the requirements
of 20 CFR 416.929 and SSRs 96-4p and 96-7p. I have also considered
opinion evidence in accordance with the requirements of 20 CFR 416.927
and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
.
.
.
After careful consideration of the evidence, I find that the claimant’s
medically determinable impairments could reasonably be expected to
cause some of the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.
The claimant has DDD and generalized arthritis with gout, which results
in the limitation on her ability to lift/carry up to 20 pounds occasionally
and 10 pounds frequently; balance occasionally; work in a job that would
allow her to change position from sitting to standing without having to
leave her workstation; work in a job that would not require her to climb
ladders/scaffolds/ropes; and work in an environment that would not
require work at unprotected heights or around dangerous equipment.
The claimant has been treated by Dr. Barnes’ office nearly every month
since 2004.
.
.
.
On November 12, 2009, Dr. Barnes wrote an opinion letter, stating that he
was asked to comment on the claimant’s gait and station, limitation of
range of motion in her spine, difficulty getting off the exam table, her
ability to sit and rise, stand “and so forth.” Dr. Barnes noted the claimant
has been his patient since before 2004. She has arthritis in her hip, back
3
and knees; and she also has a history of hypertension. On her
examination, the claimant had limitation to range of motion in her
shoulders, elbows and wrists. She had some mild joint swelling in her
wrists; and she had metacarpophalangeal (MCP) and proximal
interphalangeal (PIP) joint changes in her fingers. She had “group
strength” of 3-4/5 throughout her upper extremities. She had limitation of
range of motion in her spine. She had difficulty bending, lifting, stooping
and squatting, causing some difficulty getting off of the table. Dr. Barnes
said the claimant had some crepitus in her knees and evidence of arthritic
type change. She had a group strength of 3-4/5 throughout her lower
extremities. The claimant has used an assistive device for 3-5 years that
was prescribed by a physician. Dr. Barnes stated, “I think that the patient
is permanently medically totally disabled due to her arthritic types of
complaints.” He added that she walks with a limp and uses a cane “pretty
much all the time.”
As noted above, the claimant underwent a consultative examination with
Dr. West on December 14, 2009. The claimant complained of severe back
and bilateral leg pain. . . . Dr. West noted the claimant has to “dope up” on
Lortab and Robaxin to get any relief. . . . During the neurological
assessment, the claimant’s cranial nerves were grossly intact. No obvious
motor or sensory deficit was reported. During the musculoskeletal
examination, the claimant’s grip strength was 5/5 bilaterally. Flexion and
extension of both wrists and elbows was 5/5. Flexion, extension,
abduction and adduction of both shoulders was 5/5. Plantar flexion and
dorsiflexion was 5/5 bilaterally. Flexion and extension of both knees was
5/5. Flexion, extension, abduction, and adduction of both hips was 5/5.
The straight leg raise was negative on the left, but positive on the right.
The claimant could bend over and touch her toes and could do a squat.
She walked with a gait using a cane on the right side. She would not do
heel-toe maneuvers. Examination of all the joints revealed full range of
motion and no contractures. Dr. West assessed the claimant with chronic
back pain with lumbar DDD and osteoarthritis. Dr. West ordered x-rays of
her back, which showed some degenerative disc disease at L4, L-5 and L5S1 with some arthritic changes and bone spurring.
.
.
.
On January 25, 2010, Dr. Barnes completed a Physical Capacities
Evaluation, and found the claimant had the following limitations in an
eight-hour workday: sit for 2 hours at a time, for up to 2 hours per day;
stand for 2 hours at a time, for up to 2 hours per day; walk for 2 hours at a
time, for up to 2 hours per day; lift/carry up to 20 pounds occasionally;
4
use both hands for repetitive action such as simple grasping, but not for
pushing and pulling of arm controls or fine manipulation; bend, squat,
crawl and reach occasionally. Dr. Barnes assigned total restriction
involving unprotected heights. He assigned moderate restriction
involving being around moving machinery, exposure to marked changes
in temperature and humidity, driving automobile equipment and
exposure to dust, fumes and gases. Dr. Barnes opined that the claimant
cannot use her feet for repetitive movements as in pushing and pulling of
leg controls or climb[ing]. (Exhibit D8F).
Dr. Barnes also completed a Clinical Assessment of Pain Form on January
25, 2010, and noted the claimant’s pain is present to such an extent as to be
distracting to the adequate performance of daily activities or work;
physical activity, such as walking, standing, bending, stooping and
moving of the extremities would greatly increase pain to such an extent as
to cause distraction from task or total abandonment of task; prescribed
medication impacts the individual’s work ability to the extent that drug
side effects can be expected to be severe and to limit the claimant’s
effectiveness due to distraction, inattention and drowsiness. Dr. Barnes
also indicated the claimant has an underlying medical condition
consistent with the pain she experiences. (Exhibit D8F).
.
.
.
As for the opinion evidence, Dr. Barnes has assigned a restriction for light
work, but he said she could perform a total of only six hours-two hours
each of sit, stand and walk. (Exhibit D8F). I give great weight to Dr.
Barnes[‘] opinion in this exhibit with the exception of the limitation to
only a total of six hours of work per day. Dr. Barnes did not indicate why
the claimant could stand for two hours at a time, but only do that once
during the day. This appears to be a product of the form itself; but
otherwise, this form is consistent with the residual functional capacity
developed above. Dr. Barnes also noted pain being a distraction, which I
have accounted for by limiting the claimant to unskilled work. As
discussed below, the vocational expert identified jobs consistent with Dr.
Barnes’ opinion in Exhibit D8F with the sit/stand option.
.
5.
.
.
The claimant has no past relevant work (20 CFR 416.965).
.
.
.
5
6.
The claimant was born on July 20, 1966 and was 43 years old,
which is defined as a younger individual age 18-49, on the date the
application was filed (20 CFR 416.963).
7.
The claimant has a limited education and is able to communicate
in English (20 CFR 416.964).
8.
Transferability of job skills is not an issue in this case because
claimant does not have past relevant work (20 CFR 416.968).
9.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
416.969 and 416.969(a)).
.
.
.
If the claimant had the residual functional capacity to perform the full
range of light work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 202.17. However, the claimant’s ability to
perform all or substantially all of the requirements of this level of work
has been impeded by additional limitations. To determine the extent to
which these limitations erode the unskilled light occupational base, I
asked the vocational expert whether jobs exist in the national economy for
an individual with the claimant’s age, education, work experience, and
residual functional capacity. The vocational expert testified that given all
of these factors, the individual would be able to perform the requirements
of representative occupations such as production assembler (DOT Code
706.687-010), with approximately 333,000 available positions in the
national economy and approximately 15,000 available positions in the
State of Alabama; garment folder (DOT Code 789.687-066), with
approximately 433,000 available positions in the national economy and
approximately 4,000 available positions in the State of Alabama; and hand
packaging (DOT Code 753.687-038), with approximately 212,000 available
positions in the national economy and approximately 4,000 available
positions in the State of Alabama.
I also asked the vocational expert whether the individual could perform
any work in the national economy if the individual would have to step
away from the workstation at unexpected times due to headaches that last
10-20 minutes. The vocational expert stated that this additional limitation
would prevent the individual from being able to sustain employment.
However, I give little weight to the claimant’s testimony regarding the
6
frequency of her headaches because the record does not document
frequent complaints of headaches, as discussed in detail above. While she
testified that she has headaches daily that last for 10-20 minutes, the
claimant has only mentioned headaches to Dr. Barnes 8 times since March
16, 2004. As discussed above, the claimant generally reported headaches
associated with sinus symptoms.
I also asked the vocational expert whether the individual could perform
any work in the national economy with the limitations set forth in Exhibit
D8F. The vocational expert stated that these limitations restrict the
claimant to less than a full range of sedentary work because it allows for
only a 6-hour workday. However, I asked the vocational expert if any
work was available if the individual were able to sit/stand/walk
throughout an 8-hour workday with an accommodation of a sit/stand
option with all of the other restrictions in Exhibit D8F. The vocational
expert testified that the individual would be capable of performing the
jobs listed in hypothetical 1.
Pursuant to SSR 00-4p, the vocational expert’s testimony is consistent with
the information contained in the Dictionary of Occupational Titles. I note
that that DOT does not identify jobs with sit/stand options; but the
vocational expert testified that it does give a range of jobs that can be
performed within the sit/stand requirements noted above.
Based on the record as a whole, including the testimony of the vocational
expert, I conclude that, considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant is capable of
making a successful adjustment to other work that exists in significant
numbers in the national economy. A finding of “not disabled” is therefore
appropriate under the framework of the above-cited rule.
10.
The claimant has not been under a disability, as defined in the
Social Security Act, since September 15, 2009, the date the application
was filed (20 CFR 416.920(g)).
(Tr. 16, 18, 18-19, 22, 23-24, 24-25, 27, 28 & 29-30 (some emphasis supplied and some
citations omitted).) The Appeals Council affirmed the ALJ’s decision (Tr. 1-3) and thus,
the hearing decision became the final decision of the Commissioner of Social Security.
DISCUSSION
7
In supplemental security income cases where the claimant has no past
vocationally-relevant work, as here, it is the Commissioner’s burden to prove that the
claimant is capable of performing work which exists in significant numbers in the
national economy. See Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989) (citation
omitted). The ALJ’s articulation of specific jobs the claimant is capable of performing
must be supported by substantial evidence. Id. (citation omitted). Substantial evidence
is defined as more than a scintilla and means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S.
389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether substantial evidence
exists, we must view the record as a whole, taking into account evidence favorable as
well as unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129,
131 (11th Cir. 1986).3
In this case, the plaintiff contends that the ALJ erred in improperly rejecting a
portion of the residual functional capacity (RFC) assessment of Dr. Stanley Barnes, her
treating physician, and additionally contends that the ALJ’s RFC determination is not
supported by substantial evidence.
The undersigned will consider these issues together but prior to doing so it is
necessary for the Court to set forth the proper analysis for consideration of RFC
“issues” raised in cases like the instant one, given the defendant’s consistent stance in
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
3
8
numerous cases presently pending before this Court that in past cases this Court has
conflated the fourth and fifth steps of the sequential evaluation process with respect to
who has the burden of developing the evidence necessary to determine residual
functional capacity. (See Doc. 22, at 11-13.)
The Eleventh Circuit has made clear that “[r]esidual functional capacity, or RFC,
is a medical assessment of what the claimant can do in a work setting despite any
mental, physical or environmental limitations caused by the claimant’s impairments
and related symptoms.” Peeler v. Astrue, 400 Fed.Appx. 492, 493 n.2 (11th Cir. Oct. 15,
2010), citing 20 C.F.R. § 416.945(a). Stated somewhat differently, “[a] claimant’s RFC is
‘that which [the claimant] is still able to do despite the limitations caused by his . . .
impairments.’” Hanna v. Astrue, 395 Fed.Appx. 634, 635 (11th Cir. Sept. 9, 2010), quoting
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). “In making an RFC
determination, the ALJ must consider all the record evidence, including evidence of
non-severe impairments.” Hanna, supra (citation omitted); compare 20 C.F.R. §
416.945(a)(1) (“We will assess your residual functional capacity based on all the relevant
evidence in your case record.”) with 20 C.F.R. § 416.945(a)(3) (“We will assess your
residual functional capacity based on all of the relevant medical and other evidence.”).
From the foregoing, it is clear that the ALJ is responsible for determining a
claimant’s RFC, a deep-seated principle of Social Security law, see 20 C.F.R. § 416.946(c)
(“If your case is at the administrative law judge hearing level under § 416.1429 or at the
Appeals Council review level under § 416.1467, the administrative law judge or the
administrative appeals judge at the Appeals Council (when the Appeals Council makes
9
a decision) is responsible for assessing your residual functional capacity.”), that this
Court has never taken issue with. See, e.g., Hunington ex rel. Hunington v. Astrue, No. CA
08-0688-WS-C, 2009 WL 2255065, at *4 (S.D. Ala. July 28, 2009) (“Residual functional
capacity is a determination made by the ALJ[.]”) (order adopting report and
recommendation of the undersigned). The regulations provide, moreover, that while a
claimant is “responsible for providing the evidence [the ALJ] . . . use[s] to make a[n]
[RFC] finding[,]” the ALJ is responsible for developing the claimant’s “complete
medical history, including arranging for a consultative examination(s) if necessary,”
and helping the claimant get medical reports from her own medical sources. 20 C.F.R. §
416.945(a)(3). In assessing RFC, the ALJ must consider any statements about what a
claimant can still do “that have been provided by medical sources,” as well as
“descriptions and observations” of a claimant’s limitations from her impairments,
“including limitations that result from [] symptoms, such as pain[.]” Id.
In determining a claimant’s RFC, the ALJ considers a claimant’s “ability to meet
the physical, mental, sensory, or other requirements of work, as described in
paragraphs (b), (c), and (d) of this section.” 20 C.F.R. § 416.945(a)(4).
(b) Physical abilities. When we assess your physical abilities, we
first assess the nature and extent of your physical limitations and then
determine your residual functional capacity for work activity on a regular
and continuing basis. A limited ability to perform certain physical
demands of work activity, such as sitting, standing, walking, lifting,
carrying, pushing, pulling, or other physical functions (including
manipulative or postural functions, such as reaching, handling, stooping
or crouching), may reduce your ability to do past work and other work.
(c) Mental abilities. When we assess your mental abilities, we first
assess the nature and extent of your mental limitations and restrictions
10
and then determine your residual functional capacity for work activity on
a regular and continuing basis. A limited ability to carry out certain
mental activities, such as limitations in understanding, remembering, and
carrying out instructions, and in responding appropriately to supervision,
coworkers, and work pressures in a work setting, may reduce your ability
to do past work and other work.
(d) Other abilities affected by impairment(s). Some medically
determinable impairment(s), such as skin impairment(s), epilepsy,
impairment(s) of vision, hearing or other senses, and impairment(s) which
impose environmental restrictions, may cause limitations and restrictions
which affect other work-related abilities. If you have this type of
impairment(s), we consider any resulting limitations and restrictions
which may reduce your ability to do past work and other work in
deciding your residual functional capacity.
20 C.F.R. § 416.945(b), (c) & (d).
Against this backdrop, this Court starts with the proposition that an ALJ’s RFC
determination necessarily must be supported by substantial evidence. Compare Figgs v.
Astrue, 2011 WL 5357907, *1 & 2 (M.D. Fla. Oct. 19, 2011) (“Plaintiff argues that the ALJ’s
residual functional capacity (‘RFC’) determination is not supported by substantial
evidence. . . . [The] ALJ’s RFC Assessment is [s]upported by substantial record
evidence[.]”), report & recommendation approved, 2011 WL 5358686 (M.D. Fla. Nov. 3,
2011), and Scott v. Astrue, 2011 WL 2469832, *5 (S.D. Ga. May 16, 2011) (“The ALJ’s RFC
Finding Is Supported by Substantial Evidence[.]”), report & recommendation adopted, 2011
WL 2461931 (S.D. Ga. Jun. 17, 2011) with Green v. Social Security Administration, 223
Fed.Appx. 915, 923 & 923-924 (11th Cir. May 2, 2007) (per curiam) (“Green argues that
without Dr. Bryant’s opinion, there is nothing in the record for the ALJ to base his RFC
conclusion that she can perform light work. . . . Once the ALJ determined that no weight
could be placed on Dr. Bryant’s opinion of [] Green’s limitations, the only documentary
11
evidence that remained was the office visit records from Dr. Bryant and Dr. Ross that
indicated that she was managing her respiration problems well, that she had controlled
her hypertension, and that her pain could be treated with over-the-counter medication.
Thus, substantial evidence supports the ALJ’s determination that Green could perform
light work.”). And while, as explained in Green, supra, an ALJ’s RFC assessment may be
supported by substantial evidence even in the absence of an opinion by an examining
medical source about a claimant’s residual functional capacity, specifically because of
the hearing officer’s rejection of such opinion,4 223 Fed.Appx. at 923-924; see also id. at
923 (“Although a claimant may provide a statement containing a physician’s opinion of
her remaining capabilities, the ALJ will evaluate such a statement in light of the other
evidence presented and the ultimate determination of disability is reserved for the
ALJ.”), nothing in Green can be read as suggesting anything contrary to those courts—
including this one—that have staked the position that the ALJ must link the RFC
assessment to specific evidence in the record bearing upon the claimant’s ability to
perform the physical, mental, sensory, and other requirements of work.5 Compare, e.g.,
An ALJ’s articulation of reasons for rejecting a treating source’s RFC assessment
must, of course, be supported by substantial evidence. Gilabert v. Commissioner of Social Security,
396 Fed.Appx. 652, 655 (11th Cir. Sept. 21, 2010) (“Where the ALJ articulated specific reasons for
failing to give the opinion of a treating physician controlling weight, and those reasons are
supported by substantial evidence, there is no reversible error. In this case, therefore, the critical
question is whether substantial evidence supports the ALJ’s articulated reasons for rejecting
Thebaud’s RFC.”) (citing Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)); D’Andrea v.
Commissioner of Social Security Admin., 389 Fed.Appx. 944, 947-948 (11th Cir. Jul. 28, 2010) (per
curiam) (same).
4
In Green, supra, such linkage was easily identified since the documentary
evidence remaining after the ALJ properly discredited the RFC opinion of the treating physician
5
(Continued)
12
Saunders v. Astrue, 2012 WL 997222, *5 (M.D. Ala. Mar. 23, 2012) (“It is unclear how the
ALJ reached the conclusion that Plaintiff ‘can lift and carry up to fifty pounds
occasionally and twenty-five pounds frequently’ and sit, stand and/or walk for six
hours in an eight hour workday, [] when the record does not include an evaluation of
“was the office visit records from Dr. Bryant and Dr. Ross that indicated that [claimant] was
managing her respiration problems well, that she had controlled her hypertension, and that her
pain could be treated with over-the-counter medication.” 223 Fed.Appx. at 923-924. Based upon
such nominal clinical findings, the court in Green found “substantial evidence support[ing] the
ALJ’s determination that Green could perform light work.” Id. at 924; see also Hovey v. Astrue,
Civil Action No. 1:09CV486-SRW, 2010 WL 5093311, at *13 (M.D. Ala. Dec. 8, 2010) (“The
Eleventh Circuit’s analysis in Green, while not controlling, is persuasive, and the court finds
plaintiff’s argument . . . that the ALJ erred by making a residual functional capacity finding
without an RFC assessment from a physician without merit. In formulating plaintiff’s RFC in
the present case, the ALJ—like the ALJ in Green—relied on the office treatment notes of
plaintiff’s medical providers.”).
Therefore, decisions, such as Stephens v. Astrue, No. CA 08-0163-C, 2008 WL 5233582
(S.D. Ala. Dec. 15, 2008), in which a matter is remanded to the Commissioner because the “ALJ’s
RFC determination [was not] supported by substantial and tangible evidence” still accurately
reflect the view of this Court, but not to the extent that such decisions are interpreted to require
that “substantial and tangible evidence” must—in all cases—include an RFC or PCE from a
physician. See id. at *3 (“[H]aving rejected West’s assessment, the ALJ necessarily had to point
to a PCE which supported his fifth-step determination that Plaintiff can perform light work
activity.”) (emphasis added). But, because the record in Stephens
contain[ed] no physical RFC assessment beyond that performed by a disability
examiner, which is entitled to no weight whatsoever, there [was] simply no basis
upon which this court [could] find that the ALJ’s light work RFC determination
[was] supported by substantial evidence. [That] record [did] not reveal evidence
that would support an inference that Plaintiff [could] perform the requirements
of light work, and certainly an ALJ’s RFC determination must be supported by
substantial and tangible evidence, not mere speculation regarding what the
evidence of record as a whole equates to in terms of physical abilities.
Id. (citing Cole v. Barnhart, 293 F. Supp.2d 1234, 1242 (D. Kan. 2003) (“The ALJ is responsible for
making a RFC determination, and he must link his findings to substantial evidence in the record
and explain his decision.”)).
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Plaintiff’s ability to perform work activities such as sitting, standing, walking, lifting,
bending, or carrying.”) with 20 C.F.R. § 416.945(b), (c) & (d).
Indeed, the Eleventh Circuit appears to agree that such linkage is necessary for
federal courts to conduct a meaningful review of an ALJ’s decision. For example, in
Hanna, supra, the panel noted that
[t]he ALJ determined that Hanna had the RFC to perform a full range of
work at all exertional levels but that he was limited to ‘occasional hand
and finger movements, overhead reaching, and occasional gross and fine
manipulation.’ In making this determination, the ALJ relied, in part, on
the testimony of the ME. . . .
The ALJ’s RFC assessment, as it was based on the ME’s testimony,
is problematic for many reasons. . . . [G]iven that the ME opined only that
Hanna’s manipulation limitations were task-based without specifying
how often he could perform such tasks, it is unclear how the ALJ
concluded that Hanna could occasionally engage in all forms of hand and
finger movements, gross manipulation, and fine manipulation. . . .
The ALJ also agreed with the VE’s testimony that, under the RFC
determination, Hanna could return to his past work. But this conclusion
is not clear from the record. The VE answered many hypothetical
questions and initially interpreted the ME’s assessment to mean that
Hanna’s gross manipulation abilities were unlimited and so, with only a
restriction to fine manipulation, he could perform his past relevant work.
In a separate hypothetical, the VE stated that a claimant could not return
to his past work as a packaging supervisor if restricted to occasional
fingering, handling, and gross and fine manipulation. The ALJ also did
not include the ME’s steadiness restriction in the RFC assessment; and the
VE testified that a person restricted to handling that required steadiness
would not be able to return to Hanna’s past work.
The ALJ must state the grounds for his decision with clarity to
enable us to conduct meaningful review. The ALJ has not done so here.
To the extent the ALJ based Hanna’s RFC assessment on hearing
testimony by the ME and VE, the assessment is inconsistent with the
evidence. The ALJ did not explicitly reject any of either the ME’s or VE’s
testimony or otherwise explain these inconsistencies, the resolution of
which was material to whether Hanna could perform his past relevant
14
work. Absent such explanation, it is unclear whether substantial
evidence supported the ALJ’s findings; and the decision does not
provide a meaningful basis upon which we can review Hanna’s case.”
395 Fed.Appx. at 635-636 (emphasis added and internal citations and footnotes
omitted); see also Ricks v. Astrue, No. 3:10–cv–975–TEM, 2012 WL 1020428, at *9 (M.D.
Fla. Mar. 27, 2012) (“‘The existence of substantial evidence in the record favorable to the
Commissioner may not insulate the ALJ’s determination from remand when he or she
does not provide a sufficient rationale to link such evidence to the legal conclusions
reached.’ Where the district court cannot discern the basis for the Commissioner’s
decision, a sentence-four remand may be appropriate to allow him to explain the basis
for his decision.”) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D. Fla. 2005))
(emphasis added); cf. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th
Cir. 1994) (“The [Commissioner’s] failure to apply the correct law or to provide the
reviewing court with sufficient reasoning for determining that the proper legal analysis
has been conducted mandates reversal.”) (citation omitted).
Such linkage, moreover, may not be manufactured speculatively by the
Commissioner—using “the record as a whole”—on appeal, but rather, must be clearly
set forth in the ALJ’s decision. See, e.g., Durham v. Astrue, Civil Action No. 3:08CV839SRW, 2010 WL 3825617, at *3 (M.D. Ala. Sep. 24, 2010) (rejecting the Commissioner’s
request to affirm an ALJ’s decision because, according to the Commissioner, overall, the
decision was “adequately explained and supported by substantial evidence in the
record”; holding that affirming that decision would require that the court “ignor[e]
what the law requires of the ALJ[; t]he court ‘must reverse [the ALJ’s decision] when the
15
ALJ has failed to provide the reviewing court with sufficient reasoning for determining
that the proper legal analysis has been conducted’”) (quoting Hanna, 395 Fed. App’x at
636 (internal quotation marks omitted)); see also id. at *3 n.4 (“In his brief, the
Commissioner sets forth the evidence on which the ALJ could have relied . . . . There
may very well be ample reason, supported by the record, for [the ALJ’s ultimate
conclusion]. However, because the ALJ did not state his reasons, the court cannot
evaluate them for substantial evidentiary support. Here, the court does not hold that
the ALJ’s ultimate conclusion is unsupportable on the present record; the court holds
only that the ALJ did not conduct the analysis that the law requires him to conduct.”).
The Court now considers the issues raised by plaintiff, namely whether the ALJ
erred in rejecting a portion of the residual functional capacity (RFC) assessment of Dr.
Stanley Barnes, her treating physician, and whether the ALJ’s RFC determination is
supported by substantial evidence. Because the undersigned finds that the ALJ did not
explicitly articulate an adequate reason, supported by substantial evidence, for rejecting
a portion of Barnes’ PCE assessment, this Court must necessarily find that the ALJ’s
RFC determination is not supported by substantial evidence.
The opinion of a treating physician “must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Good cause is shown
when the: “(1) treating physician’s opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004).
Where the ALJ articulated specific reasons for failing to give the opinion
of a treating physician controlling weight, and those reasons are
supported by substantial evidence, there is no reversible error. Moore [v.
Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)].
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Gilabert, supra, 396 Fed.Appx. at 655. In this particular case, the ALJ accorded “great
weight” to Barnes’ RFC opinion save with respect to “the limitation to only a total of six
hours of work per workday.” (Tr. 27.) One need only consider the vocational expert’s
testimony that a restriction to sitting, standing, and walking for a total of six hours out
of an 8-hour workday “would be less than sedentary or light[work,]” (Tr. 59-60) to
understand the ALJ’s need to reject this portion of Barnes’ RFC opinion. The entirety of
the ALJ’s reasoning for rejecting this portion of Barnes’ opinion is, as follows: “Dr.
Barnes did not indicate why the claimant could stand for two hours at a time, but only
do that once during the day. This appears to be a product of the form itself; but
otherwise, this form is consistent with the residual functional capacity developed
above.” (Tr. 27.) Therefore, the sole “reason”6 articulated by the ALJ for rejecting
Barnes’ RFC opinion that plaintiff can stand, at one time, for 2 hours during an 8-hour
workday, and that during an entire 8-hour workday she can stand for 2 hours (see Tr.
271),7 is that Barnes’ findings were a “product of the form itself[.]” (Tr. 27.) This reason
for rejecting two of Barnes’ crucial RFC findings is supported by no evidence, much less
substantial evidence. The form (Tr. 271) speaks for itself and there simply can be no
clearer way to pose the crucial sit/stand/walk “questions” than by juxtaposing how
Contrary to the defendant’s argument, the ALJ did not articulate as a reason for
rejecting Barnes’ 6-hour opinion that such opinion “was inconsistent with other substantial
evidence of record[.]” (See Doc. 22, at 8.)
6
The ALJ does not explicitly reject Dr. Barnes’ sit and walk RFC findings (see Tr.
27) which makes her rejection of the “stand” RFC findings curious.
7
17
much a person can sit/stand/walk “at one time” with how much she can
sit/stand/walk in an “entire” eight-hour workday. In other words, the form is clear in
the information it seeks from physicians completing it and if the ALJ had concerns
about the manner in which Dr. Barnes completed the form, she should have addressed
her concerns to plaintiff’s treating physician. See, e.g., 20 C.F.R. § 416.912(e)(1) (2011)
(“We will seek additional evidence or clarification from your medical source when the
report from your medical source contains a conflict or ambiguity that must be resolved,
the report does not contain all the necessary information, or does not appear to be based
on medically acceptable clinical and laboratory diagnostic techniques.”). Because the
reason for rejecting Dr. Barnes’ “standing” RFC findings is not supported by substantial
evidence, this Court must necessarily find that the ALJ’s RFC determination is not
supported by substantial evidence.
These are not the only problems with the decision denying benefits, however. In
addition to the foregoing, the undersigned would also note that the ALJ failed to
identify any reason for rejecting Barnes’ opinion that drug side effects can be expected
to be severe and to limit the claimant’s effectiveness due to distraction, inattention and
drowsiness (see Tr. 273). Indeed, the only comment the ALJ made about Barnes’ pain
assessment form, which also found that pain is present to such an extent as to be
distracting to adequate performance of daily activities or work and that physical
activity greatly increases pain to such a degree as to cause distraction from task or total
abandonment of task (Tr. 272), is the following: “Dr. Barnes also noted pain being a
distraction, which I have accounted for by limiting the claimant to unskilled work.” (Tr.
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27.) Because Lortab 10 mg (see, e.g., Tr. 279) is indicated for the relief of moderate to
severe pain and two of its most frequently reported side effects are drowsiness and
unclear thinking, see http://www.rxlist.com/lortab-10-drug-center.htm (last visited
April 2, 2012 at 9:58 a.m.), on remand the ALJ need identify specific and adequate
reasons for rejecting Barnes’ medication side effects finding. See Gilabert, supra, 396
Fed.Appx. at 655.
Finally, the undersigned finds an anomaly in the ALJ’s reliance upon the
vocational expert’s testimony to help her carry the Commissioner’s fifth-step burden
which would be present even if the problems already identified did not exist. In this
case, the VE certainly identified jobs plaintiff could perform based upon a modification
of Barnes’ findings on the physical capacities evaluation form (compare Tr. 58 with Tr.
60); there was no testimony by the VE, however, which included a combination of the
findings on Barnes’ physical capacities evaluation form with those on the clinical
assessment of pain form (see Tr. 57-60) as the ALJ suggests in her opinion (compare Tr. 27
(“Dr. Barnes also noted pain being a distraction, which I have accounted for by limiting
the claimant to unskilled work. As discussed below, the vocational expert identified
jobs consistent with Dr. Barnes’ opinion in D8F with the sit/stand option.”) with Tr. 30
(“I asked the vocational expert if any work was available if the individual were able to
sit/stand/walk throughout an 8-hour workday with an accommodation of a sit/stand
option with all of the other restrictions in Exhibit D8F. The vocational expert testified
that the individual would be capable of performing the jobs listed in hypothetical 1.”)).
Indeed, the sole instance in which the ALJ questioned the VE about pain (specifically
19
headache pain), the VE testified that the claimant would not be able to maintain
employment. (Tr. 59.) Accordingly, the failure of the ALJ to include within her
hypothetical to the VE some description of the admittedly distracting nature of
plaintiff’s pain (Tr. 27), see Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1161
(11th Cir. 2004) (per curiam) (the ALJ is not required to include in his hypothetical
findings that he properly concludes are unsupported), makes it impossible for this
Court to find that the hypothetical posed to the VE, and relied upon by the ALJ, is
supported by substantial evidence, see, e.g., Ingram v. Commissioner of Social Security
Admin., 496 F.3d 1253, 1270 (11th Cir. 2007) (“‘In order for a vocational expert’s
testimony to constitute substantial evidence, the ALJ must pose a hypothetical question
which comprises all of the claimant’s impairments.’”). Accordingly, the Commissioner
has not carried his fifth-step burden in this case.
CONCLUSION
It is ORDERED that the decision of the Commissioner of Social Security denying
plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. §
405(g),8 see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for
further proceedings not inconsistent with this decision. The remand pursuant to
Although the plaintiff’s application in this case is solely for supplemental
security income benefits pursuant to 42 U.S.C. § 1383(c)(3), remand is proper under sentence
four of § 405(g) because § 1383(c)(3) provides that “[t]he final decision of the Commissioner of
Social Security after a hearing under paragraph (1) shall be subject to judicial review as
provided in section 405(g) of this title to the same extent as the Commissioner’s final
determinations under section 405 of this title.”
8
20
sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal
Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625,
21
125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over this matter.
DONE and ORDERED this the 5th day of April, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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